2016 Mass. App. Div. 1

October 30, 2015 - February 11, 2016

Appellate Division Northern District

Court Below: District Court, Lowell Division

Present: Swan, P.J., Coven & Crane, JJ.

Francis A. Gaimari and Elizabeth H. Manos for the plaintiff.

Sara G. Birenbaum for the defendant.

SWAN, P.J. After Lisa Tabara (Tabara) was injured in a car accident, she treated with Advanced Spine Centers, Inc., d/b/a First Spine & Rehab (Advanced Spine), which in turn filed an application for G.L. c. 90, § 34A, personal injury protection (PIP) benefits with Arbella Mutual Insurance Company (Arbella). Arbella refused payment, and Advanced Spine brought suit on the PIP claim under G.L. c. 90, § 34M, as well as various consumer protection statutes. [Note 2] A jury found for Advanced Spine on the PIP claim, and the court added attorneys fees and entered judgment, from which Arbella has appealed. Arbella argues that the court erred in denying its trial motions for judgment and in receiving a copy of the PIP application and medical records into evidence. We address the two evidentiary matters first.

1. PIP application. The PIP application set forth Tabaras name and address, the fact and date of the accident, and the identity of her treating physician and hospital. It was admitted, as the trial judge stated and as Arbella concedes, not for the truth of any matter stated in it, but only for the purpose of showing that the PIP application had been filed with Arbella. Arbella correctly argued that no keeper of its business records had been called to authenticate it as such in order to admit it as an exception to the hearsay rule. Beal Bank, SSB v. Eurich, 444 Mass. 813 , 815 (2005); Mass. G. Evid. § 803(6)(A) (2015). Generally, for documents (including business records) to be admissible, regardless of the purpose for which they are being offered, they must be identified, shown to be relevant, and authenticated by a witness who is familiar with them.Cambridge YWCA v. Franks, 1998 Mass. App. Div. 242 , 243, quoting Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426 , 435 (1990). Any error in admitting the application as proof of its receipt by Arbella was rendered harmless by the admission, without objection, of Arbellas answers to interrogatories that it had in fact received a PIP application with health certification indicating Lisa Tabara did not have private health insurance.

2. Medical records. To prove causation, the necessity of treatment, and the reasonableness of its bills, Advanced Spine offered an affidavit prepared pursuant to G.L. c.

Page 2

233, § 79G (§ 79G), of one of its chiropractors, Dr. Stephanie Szenimiklosy Rittenour (Rittenour), attesting to attached bills, records, and reports of Advanced Spine and stating that the charges and services described in them were causally related to Tabaras accident on November 20, 2007. Arbella raised no challenge to the form of the documents or the notice under § 79G, which provides that such material subscribed and sworn to under the penalties of perjury by the physician . . . rendering such services [Note 3] is admissible if written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. All these requirements were met.

Arbella objected to the receipt of the § 79G document solely because the signature of Dr. Rittenour was a photocopy, not an original, and thus violative of the best evidence rule that where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction.Commonwealth v. Ocasio, 434 Mass. 1 , 6 (2001); Mass. G. Evid. § 1004 (2015). Advanced Spines counsel persuasively argued at trial that [y]ou dont actually need the actual ink that was signed for compliance with § 79G. Counsel perhaps meant to suggest that the authenticity of the signature is not in itself a controlling issue for § 79G purposes, and thus an exception to the rule mandating production of an original. Mass. G. Evid., supra at § 1004(d). But, in any event, Dr. Rittenour herself was called as a defense witness for Arbella and testified that the signature was in fact hers. By introducing evidence after the denial of [its] motion for a directed verdict at the close of the plaintiffs case, as Arbella had, it waived [its] right to have the issue of sufficiency weighed solely on the basis of the plaintiffs evidence. Martin v. Hall, 369 Mass. 882 , 883-884 (1976). Given the renewal of the motion for a directed verdict at the close of [Arbellas] case, our review of the evidence encompasses that submitted in the course of [Arbellas] case. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link . . . . Id. at 885, quoting from Bogk v. Gassert, 149 U.S. 17, 23 (1893).McMahon v. Finlayson, 36 Mass. App. Ct. 371 , 374 n.6 (1994).

To be sure, the doctor was called as Arbellas witness for a different purpose, namely, to recant her opinion on causality -- an issue to be discussed below. But that recantation does not gainsay either her testimony as to her signature or her attestation as to Advanced Spines business records. Each record and report [Note 4] appended to her covering affidavit, in turn, was separately subscribed under the pains and penalties of perjury, with a specific reference to certification under § 79G, by each provider who performed the service described or rendered an opinion therein. Arbella advanced no objection to any of those certifications, either on best evidence or any

Page 3

other ground. The § 79G material was properly received, any error having been cured by Dr. Rittenours testimonial recognition of her signature.

3. Sufficiency of evidence. Arbella filed timely motions for directed verdict at the close of Advanced Spines evidence and at the close of all the evidence, and followed up with a motion for judgment notwithstanding the verdict, all of which were denied. The purpose of each motion is functionally the same -- to question the sufficiency of the plaintiffs case and to preserve that question for appeal. To determine correctness of the trial judges denial, we analyze whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.Boothby v. Texon, Inc., 414 Mass. 468 ,
470 (1993), quoting Dobos v. Driscoll, 404 Mass. 634 , 656 (1989). The evidence is reviewed in the light most favorable to the plaintiff, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence.Haddad v. WalMart Stores, Inc., 455 Mass. 91 , 94 n.5 (2009), quoting Tosti v. Ayik, 394 Mass. 482 , 494 (1985), S.C., 400 Mass. 224 (1987). To prevail on a PIP claim, Advanced Spines burden was to present evidence that (1) an accident occurred, (2) [Tabaras] injuries and [her] related treatment by [Advanced Spine] were causally related to the accident, (3) a Massachusetts automobile liability policy issued by Arbella and covering the vehicle involved in the accident was in effect on the accident date, and (4) there are unpaid amounts due to [Advanced Spine] for the treatment [it] provided.Provenzano v. Arbella Mut. Ins. Co., 2007 Mass. App. Div. 46 , 47.

The first element was easily met. The parties stipulated that an accident occurred on November 20, 2007.

As to causation, Advanced Spine offered the § 79G materials. The covering affidavit of Dr. Rittenour, discussed above, set forth her opinion that the attached records, reports, and bills reflected necessary treatment for Tabara, that the costs reflected therein were reasonable, and that Tabaras injuries were causally related to the accident. But an unusual twist transpired. In evidence were Superior Court pleadings filed in 2011 and 2012 alleging (and no more than alleging) that Tabara had been injured in a second accident on March 18, 2008, thirteen days before she began treatment with Advanced Spine on March 31. When Dr. Rittenour was called as a witness for Arbella and confronted with this evidence, she testified that she could no longer opine as to a causal connection between the treated injuries and the November accident and that, because of the alleged subsequent accident, she would not have signed the
§ 79G affidavit.

Dr. Rittenour did not, however, contradict her averment that the attached records, reports, and bills
were those of Advanced Spine. As noted, the records and reports, which corresponded to the bills and to which no objection was made, were certified under the pains and penalties of perjury. One, dated March 31, 2008, was the report of the initial examining chiropractic physician, Susan L. Szot (Szot), who recited Tabaras statements as to how the accident happened [Note 5] and her diagnosis of Tabaras injuries -- cervical, thoracic, and lumbar sprain/strain, cervical and lumbrosacral neuritis, and headache -- and concluded that it appears that the patients ongoing

Page 4

symptoms and complaints are causally related to the motor accident on 11/20/07. All these statements constituted, in terms of [§ 79G], the opinion of such physician . . . as to proximate cause of the condition so diagnosed, and were admissible. The date of the accident, the position of the insured, the description of what the vehicle impacted, and what happened to the insureds body during the accident, all contained in the chiropractors reports, were also admissible. They all entered into the chiropractors ultimate opinion as to whether the injuries presented to the chiropractor were the proximate result of the patients disclosures.Physical Rehabilitation Group, Inc. v. Arbella Mut. Ins. Co., 2012 Mass. App. Div. 119 , 123. The element of causality was satisfied. It thereafter was for the jury to determine the weight to be assigned to Dr. Szots opinion and Dr. Rittenours recantation.

As to coverage, a copy of the standard Massachusetts automobile insurance policy was in evidence. The third paragraph of Advanced Spines complaint alleged that Tabara was an occupant of a motor vehicle that was involved in an accident in Massachusetts and that the vehicle was insured by the defendant [i.e., by Arbella] by a Massachusetts Automobile Insurance Policy which provided Personal Injury Protection (PIP) benefits mandated by G.L. c. 90, § 34A. Arbella answered that it admits a Massachusetts motor vehicle policy of insurance was in effect covering a motor vehicle alleged to be involved in an accident relating to Lisa Tabara on the date alleged, but after reasonable inquiry the information known by the defendant is insufficient to allow it to either admit or deny the remaining allegations of this paragraph and calls upon the plaintiff to prove the same (emphasis added). Arbella argues that its answer constitutes a denial that it, Arbella, was the insurer. A common sense examination of the complaint and answer belies the assertion. In context, an admission to a Massachusetts motor vehicle policy of insurance [being] in effect answering the allegation that the vehicle was insured by the defendant by a Massachusetts Automobile Insurance Policy would appear to any discerning reader a concession of coverage. Arbella could have clearly and pointedly answered with a specific denial of, or lack of information to admit, coverage. Whether by inadvertence or design, it did not. Imprecise pleading, here by both parties, clouded but in the end compelled the conclusion that Arbella was admittedly the insurer of the vehicle.

The other elements are quickly addressed. Answering an interrogatory, Arbella agreed that it had not paid Advanced Spines bills. Answers to interrogatories, if properly admitted at trial, are evidentiary admissions that may be considered by the fact finder.Provenzano, supra at 48. And treatment records, which corresponded to the billing summary, contained certifications that they were for reasonable expenses for necessary medical treatment provided for Tabaras injuries. Scalia v. Liberty Mut. Ins. Co., 1995 Mass. App. Div. 69 , 71. In sum, as we stated in another case involving the same plaintiff, While the evidence presented by Advanced Spine was rather sparse, it did cover these elements.Advanced Spine Centers, Inc. v. Commerce Ins. Co., 2012 Mass. App. Div. 165 , 167.

True, Dr. Rittenours recantation on causality is concerning, especially where the evidence was sparse. Her live testimony was contradicted only by the written opinion of Dr. Szot, and the record does not indicate whether Dr. Szot knew about the alleged second accident when she treated Tabara. The jury, however, possessed all this evidence, including court records of the alleged second accident, and, before rendering its verdict for Advanced Spine, presumably followed the trial judges

Page 5

instructions on
evaluating evidentiary weight and the credibility of witnesses and documents. [Note 6] Buoniconti v. Lee, 234 Mass. 73 , 76 (1919) (It must be presumed the jury followed the instructions.); Sullivan v. Lowell & Dracut St. Ry. Co., 162 Mass. 536 , 538 (1895) (Ordinarily, it must be assumed that the jury follow the instructions which they receive.). Arbellas counsel expressed satisfaction with the charge. The motions for directed verdict and for judgment notwithstanding the verdict were properly denied.

[Note 2] The court found for Arbella on the consumer protection claims, G.L. c. 93, 93A, and 176D, and they are not the subject of this appeal.

[Note 3] The definition of physician in § 79G includes chiropractor.

[Note 4] Only one billing summary was attached, giving each date, description of service, and fee. This document itself was not certified, but each entry in it corresponded to the date or close to the date of a record of treatment that was certified.

[Note 5] Tabara told Dr. Szot that she was a restricted front passenger in a motor vehicle that was stopped and was struck from the rear by another vehicle and that she recalls hitting her hands on the dashboard at the time of injury.

[Note 6] While not mentioned by counsel at trial or on appeal, we observe that a number of the treatment records in the § 79G documents were certified with the signature SS, which could have been that of Susan Szot or of the recanting Dr. Rittenour subscribing as Stephanie Szenimiklosy, as her name sometimes appears in the records. Again, the significance of this circumstance was a factual issue for the jury to weigh.